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I. Chambers

A. Overview

In courtrooms everywhere, an impartial, independent, and competent bench is essential to conducting all trials, and especially those entailing complex legal issues, while maintaining scrupulous fidelity to the rights of the accused and while managing proceedings efficiently. At the International Criminal Court, the bench shares with other organs of the court responsibility for meeting unique challenges including shaping the practice and policy of an international treaty-based institution, making meaningful a new model of victims’ participation, protecting witnesses and victims in diverse, conflict-affected regions, and building support for the work of the court through representational activities, all while developing the nascent field of international criminal law.

These responsibilities are carried forward by the 18 judges of the court’s Chambers, elected by the Assembly of States Parties (ASP)² to staggered, non-renewable nine-year terms and split between an appeals, trial, and pre-trial division.³ In addition, the Presidency, comprised of a president, first vice-president, and second vice-president elected by the judges from among their ranks, forms a separate organ of the court and has responsibility for administration of the Chambers and for overseeing the Registry.⁴

The Rome Statute prescribes a diverse and experienced bench. Judges must be nationals of the states parties, but no two judges may be nationals of the same state.⁵ The statute instructs the ASP to balance the bench as to gender, geography, and type of legal system.⁶ Consideration is to be given to the need to include “judges with legal expertise on specific issues, including … violence against women or children,”⁷ but all judges must have established competence either in criminal law and procedure (known as “List A” judges) or “relevant areas of international law such as international humanitarian law and the law of human rights” (known as “List B” judges).⁸ Judges are to be assigned to the different divisions of the court in a manner that achieves a balance of criminal and international law expertise within each division, with trial and pre-trial divisions weighted in favor of judges with criminal trial experience.⁹

Drawing from the experience of other tribunals, Human Rights Watch believes that it is vitally important for the court to have judges with prior experience in criminal proceedings whether as judges, prosecutors, or defense attorneys. Requiring criminal trial experience among the judges of the pre-trial division has already born evident fruit in the confirmation of charges hearing before Pre-Trial Chamber I for Thomas Lubanga, the court’s first such hearing. The pre-trial chamber’s presiding judge, Judge Claude Jorda, a List A judge and past president of the International Criminal Tribunal for the former Yugoslavia (ICTY), balanced a determination to move the proceedings along with flexibility when the parties needed changes to the ordered schedule. Judge Jorda was also able to fairly and efficiently manage what was, at times, a combative defense.

It is premature, however, to make a conclusive assessment of the performance of the Presidency and Chambers. Although the judges of the court have already carried out many substantial tasks since the bench was first constituted in 2003,¹⁰ at this writing, pre-trial proceedings have been completed in only one case, and the court is on the eve of its second confirmation of charges hearing and first trial.¹¹ This section is limited accordingly to the efforts of the Presidency to promote coordination among the court’s organs and to the working-out by the pre-trial division of its innovative mandate.

B. The Presidency: Coordination key to court’s success

The responsibilities of the Presidency under the court’s statute, rules, and regulations are varied.

Chiefly responsible for court administration,¹² the Presidency has varied duties including constituting pre-trial and trial chambers;¹³ replacing judges, designating alternative judges, and making temporary assignments to the three divisions of the Chambers;¹⁴ reviewing certain Registry decisions;¹⁵ concluding agreements on international cooperation;¹⁶ inspecting the court’s detention center;¹⁷ and carrying out many of the court’s functions in connection with the enforcement of sentences.¹⁸

The court’s first president, Judge PhilippeKirsch of Canada, has additionally assumed a representational role. In numerous private meetings, conferences, seminars, and speeches, Judge Kirsch has effectively worked to promote broader ratification of the Rome Statute and pressed for increased international cooperation and support for the court, including through communications with the ASP focal point on cooperation¹⁹ and with the Committee on Budget and Finance (CBF). The president’s work to press for broader ratification of the Rome Statute has had an impact: for example, Mexico ratified the Rome Statute within one year of a personal visit by the president.²⁰ Human Rights Watch welcomes the example set by the current president and encourages his successor—to be elected early next year—to continue efforts to marshal support for the court through these and other activities.

Consistent with his administrative responsibilities, the president plays a role in improving the court’s internal functioning. Early concerns were expressed about division and lack of coordination between the court’s organs, including by the CBF in its March 2004 report.²¹ In response, the court’s organs committed themselves to a “One Court” principle prioritizing coordination on administrative matters while respecting the independence of each organ. ²² Nonetheless, the CBF reiterated its same concerns in its August 2004 review of the court’s 2005 draft budget. ²³ As Human Rights Watch also observed at the time, the draft budget did not reflect any common approach toward the core functions of the court, and, in fact, the plans of the different organs seemed to duplicate rather than complement one another’s work.²⁴

Such tensions and duplications may have been inevitable in a developing institution working out complicated issues of policy and practice. In response to these expressions of concern, the president asserted institutional unity of purpose²⁵ and took concrete steps to improve coordination. These included increasing the frequency of meetings of the Coordination Council²⁶—a body composed of the president, prosecutor, and registrar which facilitates administrative coordination²⁷—and establishing inter-organ working groups.²⁸ The working groups now include the Strategic Plan Project Group—which led to the court’s 2006 Strategic Plan, discussed below—and the Victims’ Participation Working Group.

The president’s interventions have gone some way toward increasing dialogue and cooperation, but further efforts are required. In key areas including outreach and field operations where the organs of the court share overlapping responsibilities, a coordinated approach has not always been evident, limiting the court’s ability to maximize its impact with affected communities.²⁹ And a lack of communication between the organs is palpable to external actors who must interact with the court on issues including international cooperation.

While the independence of the prosecutor and the bench should not be compromised, the president should continue his leadership efforts to underscore the importance of internal coordination. Such coordination is essential to meeting the court’s unique responsibilities and challenges as an international treaty-based institution of a fundamentally different character to national courts and prosecutions.

In addition, Human Rights Watch encourages the president to exercise continued leadership in the development of a shared vision among the court’s organs. The court’s 2006 Strategic Plan aims at identifying common institutional goals, guiding budgeting, and increasing states parties’ understanding of ICC operations.

Human Rights Watch placed great emphasis on the opportunity presented by the development of a strategic plan. This was, in our view, a chance for the court’s organs—deeply immersed in their day-to-day challenges—to step back and project a long-term vision for the court. Instead of reviving the spirit that animated the 1998 Rome conference and setting a course that would ensure the court’s impact on those communities affected by crimes within the court’s jurisdiction, the Strategic Plan focused primarily on in-court proceedings and court management, with a limited contribution to a shared sense of purpose among the organs.³⁰

The court has continued to develop subsidiary strategic documents in key areas, including a prosecutorial strategy, outreach strategy, counsel strategy, and victims’ strategy.³¹ The development of these documents offers the court continued opportunities to develop and articulate a shared vision. The president can encourage this approach through the Coordination Council. In addition, we note that the Presidency has been provided with a budget to hire a Strategic Planning Coordinator, but this position remains vacant.³² We encourage the Presidency to make use of this position to consolidate progress on the Strategic Plan.

C. Pre-trial division: Uncharted waters

ICC situations³³ are assigned by the Presidency to a three-judge pre-trial chamber following information received from the prosecutor that a situation has been referred either by a state party or the United Nations Security Council or that the prosecutor intends to request authorization for an investigation.³⁴ Cases³⁵ arising from situations remain with the pre-trial chamber through the confirmation of charges hearing which concludes pre-trial proceedings.³⁶ There are currently three pre-trial chambers: Pre-Trial Chamber I is assigned to the Democratic Republic of Congo and Darfur situations and cases; Pre-Trial Chamber II is assigned to the northern Uganda situation and case; and Pre-Trial Chamber III is assigned to the Central African Republic situation.³⁷

The pre-trial division at the ICC is the first for any international criminal justice mechanism; it represents one important innovation of the Rome Statute. At the tribunals for the former Yugoslavia and Rwanda, trial chamber judges have shouldered responsibility for pre-trial court proceedings and, apart from orders of the court required to aid investigation, there is little provision for judicial control during investigations until the prosecutor’s presentation of an indictment for confirmation.³⁸ The Rome Statute, by contrast, establishes a pre-trial division with responsibility not only to carry cases forward to trial by issuing arrest warrants;³⁹ presiding over a defendant’s initial appearance before the court and safeguarding his or her rights;⁴⁰ and making rulings on early admissibility challenges;⁴¹ but also with substantial responsibilities even during investigations.

These include issuance of orders as requested by the prosecutor in aid of investigations,⁴² oversight of the prosecutor through authorization of investigations initiated by the prosecutor proprio motu,⁴³ and review of decisions by the prosecutor not to pursue investigations or prosecutions.⁴⁴ Such a review may be undertaken at the request of a state or the Security Council,⁴⁵ and where a decision not to proceed is based on the prosecutor’s determination that it would not be in the “interests of justice,” the pre-trial chamber may also review the prosecutor’s determination on its own initiative.⁴⁶

Cases brought by the prosecutor are not automatically committed to trial; instead, the pre-trial chamber must first conduct a confirmation of charges hearing to “determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged.”⁴⁷ Charges that are not confirmed by the pre-trial chamber are dropped.⁴⁸

The pre-trial chamber is also responsible alongside the prosecutor for the protection and privacy of victims and witnesses and for the preservation of evidence.⁴⁹ At the request of the prosecution, the pre-trial chamber may take measures to ensure the integrity and efficiency of any proceedings in connection with a “unique investigative opportunity,” that is, “a unique opportunity to take testimony or a statement from a witness or to examine, collect or test evidence, which may not be available subsequently for purposes of a trial.”⁵⁰ But where the prosecutor fails to request such measures, the pre-trial chamber—which must be informed by the prosecution of any such investigative opportunity—can also take measures on its own initiative if it concludes that the prosecutor’s failure to request measures is unjustified.⁵¹

Finally, under regulation 48 of the Regulations of the Court, the pre-trial chamber “may request the Prosecutor to provide specific or additional information or documents in his or her possession, or summaries thereof, that the Pre-Trial Chamber considers necessary” to carry out its functions under articles 53(3)(b), 56(3)(a), and 57(3)(c).⁵²

The pre-trial chamber harnesses common and civil law traditions to provide oversight of the prosecutor’s investigations, set up cases for trial, and conserve judicial resources. Although it is still too early in the court’s development to make a comprehensive assessment, the pre-trial chamber’s unique responsibilities may help to increase the efficiency of proceedings.

1. First decisions steer ICC’s course

The utility of formalized judicial oversight provided by the pre-trial chambers at an early phase of proceedings is already apparent.

For example, the pre-trial chamber has acted to protect the interests of the defense on discrete issues, even prior to the issuance of arrest warrants or to the initial appearances of defendants before the court. In the DRC situation, pursuant to article 56 of the Rome Statute,⁵³ Pre-Trial Chamber I appointed ad hoc counsel to represent defense interests with regard to forensic examinations requested by the prosecution.⁵⁴ In the Darfur situation, Pre-Trial Chamber I appointed ad hoc counsel to represent the interests of the defense when, under rule 103, it invited expert observations on the protection of victims and on the preservation of evidence.⁵⁵ Ad hoc counsel of the Office of Public Counsel for the Defence (OPCD), discussed in part III.B.1, below, have also been appointed by Chambers to review applications for victims’ participation during investigations⁵⁶ and to represent any defense interests implicated by notice of proposed activities by the court’s Trust Fund for Victims (TFV).⁵⁷

In addition, the pre-trial division has acted to facilitate proceedings by requesting state cooperation pursuant to article 87 of the Rome Statute. Pre-Trial Chamber II, for example, sought information from the government of Uganda as to the impact of an agreement providing for national accountability measures, signed between the government of Uganda and the Lord’s Resistance Army (LRA), on the chamber’s outstanding arrest warrants against LRA commanders.⁵⁸ At a time when Uganda’s commitment to genuine accountability for crimes committed by the LRA was in question,⁵⁹ the chamber’s request was a useful reminder of Uganda’s obligations under the Rome Statute and prompted an official clarification by the government of the agreement’s provisions.⁶⁰

Perhaps most significantly, early decisions by the pre-trial chambers have created a foundation for interpretation of the Rome Statute.

In the DRC situation, Pre-Trial Chamber I provided a first interpretation of certain of the statute’s admissibility criteria in issuing its arrest warrant for Thomas Lubanga, the head of the Union of Congolese Patriots (UPC), a prominent militia group accused of committing atrocities during conflict in the northeastern Democratic Republic of Congo district of Ituri. The chamber held that national proceedings that can preempt the court’s jurisdiction under article 17(1)(a)—consistent with the Rome Statute’s emphasis on the court as “complementary to national criminal jurisdictions”⁶¹—must encompass “both the person and the conduct which is the subject of the case before the Court.”⁶² The chamber also gave content to article 17(1)(d), which requires that a case be of “sufficient gravity to justify further action by the Court.” The chamber indicated that only the “most senior leaders suspected of being the most responsible” for crimes within the jurisdiction of the ICC should be tried before the court.⁶³ By providing one interpretation of the boundaries of the ICC’s jurisdiction, this decision has shaped perceptions of what cases ought to be investigated by the prosecutor and to be heard by the court.

When Pre-Trial Chamber I subsequently confirmed the charges against Lubanga, it again reached several issues of first impression. For example, under article 61(7), to confirm charges, the pre-trial chamber must, on the basis of a hearing, determine whether “there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged.” Navigating between competing interpretations set forward by the prosecutor, defense, and a victim’s legal representative, the chamber determined that the language “substantial grounds to believe” required the prosecutor to bring forward “concrete and tangible proof demonstrating a clear line of reasoning underpinning its specific allegations,” and for the chamber to assess that evidence as a whole in making its determination as to whether to send the suspect to trial.⁶⁴ The pre-trial chamber also laid out the elements that must be met for a finding of co-perpetration, a basis of individual criminal liability provided for in article 25(3)(a) of the Rome Statute.⁶⁵

As discussed elsewhere more extensively in this report,⁶⁶ the Rome Statute provides victims with a novel right of participation in court proceedings that goes beyond the narrow role of prosecution witness.⁶⁷ Victims have appeared only as witnesses before the ICTY and the International Criminal Tribunal for Rwanda (ICTR) (and also before the Special Court for Sierra Leone (SCSL), established subsequent to the Rome Statute in 2002, although the 2001 law establishing the Extraordinary Chambers in the Courts of Cambodia (ECCC) provides for victims’ participation more broadly). Working out the details of victims’ participation before the ICC, however, has proved to be among the most significant challenges confronted thus far. The pre-trial chambers have expended much effort in setting up and managing systems of victims’ participation. Although the Chambers have sometimes differed in their approaches, decisions by Pre-Trial Chambers I and II have granted victims procedural status during investigations, sketched out modalities of victims’ participation in situations and cases, enumerated criteria for establishing victim status, and made arrangements for legal assistance to victim participants and applicants (see Part VII.B.1, below).

Decisions of the pre-trial chambers—some of which are discussed in more detail in Human Rights Watch’s March 2007 summary of the court’s early jurisprudence⁶⁸—may come under review by the appellate division after a final judgment in the case, or, in certain circumstances, through interlocutory appeal.⁶⁹ Indeed, the substantial efforts of the pre-trial chamber in working out the scope and modalities of victims’ participation have been revised by the trial chamber in one case and are now under review in a number of respects by the appeals division (see Part VII.B, below). Taken together, however, these early decisions provide an important starting point for the difficult task of working out the statute’s many novel provisions, and from which subsequent interpretations may be drawn.⁷⁰

2. Navigating intersecting roles

The ICC’s blend of common and civil law traditions creates a unique intersection between the roles of the pre-trial division and the prosecutor. While it stops short of creating a true investigative judge in the tradition of civil law, the Rome Statute confers on the pre-trial division powers and functions as described above at the investigation phase and during charging proceedings that would be out of place in a common law system. Efforts by the pre-trial chamber to work out the limits of its role in respect of the prosecutor’s mandate has at times led to obvious tension between the two organs, particularly where the pre-trial chamber has taken a proactive approach.

For example, across the situations, the pre-trial chambers’ use of various provisions of the court’s statute, rules, and regulations to engage the Office of the Prosecutor on the progress and direction of his investigations has met with the prosecutor’s strong response.

In the first-ever decision rendered by the pre-trial division in February 2005, Pre-Trial Chamber I decided to convene a status conference—that is, a hearing before the chamber—in the DRC situation.⁷¹ The chamber was apparently concerned that action was required on its part to protect witnesses and to preserve evidence, and it relied on its responsibilities for these activities under article 57(3)(c) to convene the status conference.⁷²

The OTP filed a submission in response, terming the pre-trial chamber’s intervention unwarranted under the circumstances and unauthorized as a general matter during the investigative stage.⁷³ The OTP prefaced its submission by noting that “the interplay between Pre-Trial Chamber and Prosecution is a sensitive matter that lies at the heart of the compromises reached in Rome between different legal traditions and values.” The OTP described the relationship between the two organs as one in which investigation is “entrusted to the Prosecution” while the pre-trial chamber is permitted “to engage in specific instances of judicial supervision over the Prosecution’s investigative activities,” and the OTP urged that “this delicate balance between both organs must be preserved at all times in order to honour the Statute, and to enable the Court to function in a fair and efficient matter.”⁷⁴

Pre-trial chambers now routinely convene status conferences during investigations. For example, several months later, Pre-Trial Chamber II convened a conference on the status of investigations in the Uganda situation, apparently concerned that the prosecutor may have decided against prosecution of alleged crimes committed by Ugandan government forces on the basis of certain comments of the prosecutor to a meeting of legal advisors of foreign affairs ministries and of his statement at the fourth session of the ASP. The chamber cited its ability under article 53(3)(b) to review on its own initiative decisions of the prosecutor not to proceed with a prosecution under article 53 because it would not be in the “interests of justice,”⁷⁵ as well as its specific request in an earlier decision to be informed “promptly” and “in writing” of any such decision.⁷⁶ The OTP’s public submission in advance of the status conference clarified that no decision had been reached under article 53(3) and that analysis of alleged crimes committed by the Ugandan national army was ongoing.⁷⁷

Although it did not convene a status conference, Pre-Trial Chamber III also relied on its supervisory role under article 53(3) to seek an update from the OTP on its analysis of the situation in the Central African Republic. The situation was referred to the prosecutor by the CAR government on December 22, 2004; two years later no determination had been made by the OTP as to whether to initiate an investigation.⁷⁸ Prompted by a request of the CAR government for an update, the pre-trial chamber directed the prosecutor to provide it and the CAR government with a report on the status of his office’s analysis.⁷⁹ The prosecutor objected, arguing that the pre-trial chamber’s reviewing powers under article 53 are not triggered in the absence of a decision by the prosecutor not to proceed with an investigation under article 53(1), but complied with the chamber’s request, “reserv[ing] its position on the proper scope of the legal provisions cited by the Chamber in its 30 November 2006 Decision, the division of competences between the OTP and Pre-Trial Chambers and the rights of States who have referred situations to the Court.”⁸⁰ The prosecutor subsequently announced his decision to open an investigation in the CAR on May 22, 2007.⁸¹

In the Darfur situation, the prosecutor had adopted a policy of conducting his investigation wholly outside of Darfur, citing security conditions that prohibited the establishment of a system of victim and witness protection there.⁸² Pre-Trial Chamber I, again citing its responsibilities for protection under article 57(3)(c) and 68(1), as well as evidence preservation under article 57(3)(c), invited the UN High Commissioner for Human Rights, Louise Arbour, and the former chairperson of the UN International Commission of Inquiry on Darfur, Sudan, Antonio Cassese, to make rule 103 submissions on the protection of victims and on the preservation of evidence in Darfur.⁸³

Both Arbour and Cassese had made clear, public comments about the Darfur investigation, and their submissions disagreed on various grounds with the prosecutor’s decision not to conduct his investigations within Darfur.⁸⁴ Cassese additionally made a number of specific suggestions about investigative and prosecutorial strategy, including the desirability of locating criminal responsibility up the chain of command in the Sudanese military.⁸⁵ In his responses, the prosecutor rebuffed these comments as attempts to influence his strategy.⁸⁶

In addition to these specific actions within individual situations, Pre-Trial Chambers I and II have taken a series of decisions on the modalities of victims’ participation during investigations. While these decisions primarily aim at making meaningful rights of victims’ participation guaranteed by the Rome Statute, arguably they also reflect an attempt to obtain other independent information in aid of the chamber’s substantial responsibilities during investigations. Pre-Trial Chambers I and II have rejected arguments by the OTP that victims’ participation in the situation phase jeopardizes the integrity of investigations.⁸⁷

Finally, the pre-trial chambers have offered a restrictive interpretation of some aspects of the prosecutor’s authority. First, in issuing arrest warrants in the Uganda situation, Pre-Trial Chamber II rejected the prosecutor’s application to transmit requests for the arrest and surrender of the suspects to Uganda and other states. The OTP apparently considered itself to be the organ best situated to obtain cooperation with the requests.⁸⁸ Characterizing the warrants and requests as requests for cooperation made by the Chambers, Pre-Trial Chamber II relied in its decision on rule 176(2), which provides that while the OTP is responsible for transmitting requests for cooperation made by the prosecutor, the registrar is responsible for transmitting requests of the Chambers. The Chamber also cited provisions in the court rules and regulations addressed to the registrar’s role in transmitting requests for arrest and surrender (regulation 111) and in making arrangements for surrender (rule 184) in support of its ruling.⁸⁹ The pre-trial chamber denied the prosecutor leave to appeal its ruling.⁹⁰

Second, on its own initiative, Pre-Trial Chamber I acted to amend before confirming the charges brought by the prosecutor against Thomas Lubanga. The chamber changed the legal characterization of the facts, replacing the prosecutor’s charges under article 8(2)(e)(vii) of the Rome Statute with crimes punishable under article 8(2)(b)(xxvi). Although both articles make punishable the conscription, enlistment, and use of child soldiers, the charges brought by the prosecutor require their conscription and enlistment into armed forces or groups in the context of an armed conflict not of an international character. By contrast, the charges substituted by the pre-trial chamber refer to conscription and enlistment into national armed forces in the context of an international armed conflict. The chamber also reduced the temporal scope of the charges.⁹¹

Human Rights Watch agrees with the chamber that the Ituri conflict should not have been classified by the prosecutor as a non-international (internal) armed conflict: Uganda was an occupying force in Ituri between August 1998 and May 2003.⁹² At the same time, however, the Rome Statute does not appear to grant the pre-trial chamber authority to amend charges. Instead, where the pre-trial chamber considers that the “evidence submitted [during a confirmation of charges hearing] appears to establish a different crime within the jurisdiction of the Court,” the statute provides for the chamber to adjourn the hearing and to request the prosecutor to consider amending a charge.⁹³

The pre-trial chamber denied the prosecutor leave to appeal its decision but noted that the trial chamber may act under regulation 55 to recharacterize the facts.⁹⁴ The prosecutor, in fact, sought review of the pre-trial chamber’s decision before Trial Chamber I, arguing that either the trial chamber could overturn the pre-trial chamber’s decision, or it could proceed to recharacterize the facts under regulation 55. The trial chamber declined the prosecutor’s invitation to review the decision of Pre-Trial Chamber I and found that it was premature to take any action under regulation 55. Consequently, the prosecution is faced with taking a case to trial on charges an element of which it has maintained it is not in a position to prove.⁹⁵

This clear division between the prosecutor’s authority to bring charges and the pre-trial chamber’s authority to commit an individual to trial by confirming those charges is exceptional in a statute which often leaves ambiguous the precise boundaries between the Office of the Prosecutor and the pre-trial division. It is perhaps inevitable that there have been differences of opinion in the working out of these ambiguities. Maximizing the contribution of both bodies to achieving the shared goal of effective investigations conducted with integrity will require continued attention to their relationship and respective roles. The pre-trial division can assist in this process by articulating as fully and as clearly as possible the reasoning and legal basis for the role that it is shaping for itself out of the Rome Statute.

D. Maintaining judicial dialogue key to meeting challenges ahead

In the months and years ahead as trials go forward, the work of the court’s Chambers will take on increasing importance within the framework of the ICC and in influencing perceptions of the court’s success. With the anticipated start of the court’s first trial in the case against Lubanga, the eyes of the international community as well as of those communities affected by crimes within the court’s jurisdiction will be trained on the court. Whether its proceedings are fair and expeditious will be the first real test of whether a long-desired permanent, international criminal tribunal can deliver on the promise of justice.

Key benchmarks in assessing the court’s future performance will include the Chambers’ ability to manage trials efficiently, to safeguard the rights of defendants, and to ensure the safety of court witnesses, as well as its continued working out of the many innovative aspects of the Rome Statute, including victims’ participation and the role of the pre-trial division. In meeting these challenges, Human Rights Watch encourages the judges of the court to draw on existing work in the development of court-wide strategies and to benefit from the considerable efforts of the court’s organs during these initial years of institution building.

Given the Rome Statute’s many innovations, and, in particular, its mix of common and civil law traditions with a bench of judges drawn from these different traditions to match, it is perhaps inevitable that there have been some delays in the court’s first proceedings.⁹⁶ Although charges were confirmed against Lubanga in January 2007, at this writing, his trial had been suspended, and the court’s second confirmation of charges hearing in the case against Germain Katanga and Mathieu Ngudjolo, two other Ituri militia leaders, had been delayed until June 2008.⁹⁷

In addition to delays, the difficult task of developing substantive and procedural law uniquely suited to the ICC is evident from a creeping discord in the interpretations and solutions offered by the court’s Chambers to the issues before them. Differences in approach are evident from decisions (and dissents) on fundamental issues including victims’ participation,⁹⁸ witness protection,⁹⁹ and disclosure practices in connection with a defendant’s fair trial rights.¹⁰⁰

To a certain extent, such differences are inevitable: the Rome Statute does not make the decisions of Chambers binding on one another.¹⁰¹ Persons from the Office of the Prosecutor, Registry units, and counsel (among others), who appear repeatedly before the different Chambers and divisions, will have an interest in litigating and relitigating issues. As the Chambers confront various country situations with unique requirements, different approaches in the application of the law to the facts may be both expected and necessary. Indeed, bringing many legal minds to bear on the novel issues that face the court may build a stronger jurisprudence over time.

While judges should remain free to reach whatever they consider to be the correct legal resolution of the issues in the specific cases before them, it will aid the gradual convergence of the court’s jurisprudence on agreed-to procedures and principles if the Chambers are more transparent in their legal reasoning, particularly where departing from that of their colleagues. Some of the court’s decisions allude to an ongoing dialogue between them, to a willingness in some instances to follow one another’s interpretations,¹⁰² as well as to revisit and revise their interpretations in light of another chamber’s subsequent determination.¹⁰³ In other decisions, however, Chambers have moved away from prior interpretations without an explanation as to why a different approach has been adopted.¹⁰⁴

It is far preferable that decisions reflect relevant existing court decisions and, where there is disagreement, the basis for that disagreement. Such a practice would help to bring greater coherence to the court’s jurisprudence with time, and, in the meantime, would make the work of the court more accessible to counsel, defendants, and victims.